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The catch-22 that could hand Wisconsin’s electoral votes to Trump

Voting rights don’t count for much if they can’t be enforced.

CREDIT: AP Photo/Andrew Harnik
CREDIT: AP Photo/Andrew Harnik

Next Wednesday, a federal court in Wisconsin will hold a hearing on just what it is supposed to do with the state’s inability to keep its promises in a key voting rights case. While it is very likely that the state has both defied a court order and violated its own promises to a higher court, it is far from clear much can be done about Wisconsin’s disrespect of the fundamental right to vote, given a Supreme Court decision tying the courts’ hands.

Last July, a federal court hearing one of several challenges to Wisconsin’s voter ID law, a common method of voter suppression which disproportionately targets Democratic voters, ordered the state to “issue a receipt to any person” who begins the process of obtaining the ID they are now required to hold in order to vote, “and that receipt will serve as an ID valid for voting in the November election.” The next month, a federal appeals court declined to impose more robust restrictions on the state’s voter ID law, citing the state’s promise that it would “mail automatically a free photo ID to anyone who comes to DMV one time and initiates the free ID process.”

As it turns out, however, Wisconsin has neither kept its promise to the appeals court nor complied with the trial court’s order. As The Nation’s Ari Berman reported last week, voting rights advocates investigated 10 Wisconsin DMVs to see if they were acting in compliance with the law. As it turns out, “only three in 10” said that a voter “would get an ID to vote in a week or less, as state law requires.”

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Berman’s reporting, along with similar reporting by the Milwaukee Journal Sentinel, prompted Judge James Peterson to order the state to “investigate these allegations and provide a report to the court” by Friday. Peterson followed that order with another one, scheduling an October 12 hearing “to discuss whether any of the relief requested by plaintiffs is necessary or appropriate.”

The plaintiffs in this case requested that Peterson take fairly robust action in response to the state’s failure to comply with the law. In a motion filed on Tuesday, they argue that “the only remedy that will prevent the State from disenfranchising voters in the upcoming general election . . . is the issuance of an injunction that bars the State from enforcing the voter ID law” until the state can show that it is actually carrying out its promises to the appeals court. Barring that, the plaintiffs ask for a wide range of alternative relief, including an order requiring the state “to count all no-ID provisional ballots unless it can demonstrate (through evidence beyond the lack of a qualifying ID) that a particular ballot was cast by a voter who is not qualified.”

Either one of these remedies would most likely hobble Wisconsin’s voter suppression law, at least for the upcoming election. And Wisconsin can hardly claim the moral high ground and ask for a less drastic order in light of the fact that the state was caught making false statements to a federal court.

Yet it’s also unlikely that Peterson will hand down a robust check against voter suppression, and just as unlikely that his decision will survive an appeal if he does do so. As Rick Hasen, a leading election law scholar, notes in an interview with Wisconsin Public Radio, “the closer it is to the elections, the more wary the courts are supposed to be wary about making changes.”

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The origin of this wariness is the Supreme Court’s decision in Purcell v. Gonzalez, which warned that “court orders affecting elections can themselves result in voter confusion and consequent incentive to remain away from the polls,” and that “as an election draws closer, that risk will increase.”

Prior to Justice Antonin Scalia’s death, the Roberts Court’s conservative majority applied Purcell vigorously to block court decisions striking down voting rights decisions the month before an election, even when those decisions made it easier for someone to cast a ballot. Though conservatives on the Supreme Court no longer enjoy a majority, and thus it is unlikely that they will be able to apply Purcell as vigorously as they did in past elections, they may not have to. Old Supreme Court decisions remain good law that lower court judges are bound to follow, and they will likely remain good law unless someone is confirmed to fill Scalia’s vacant seat who is more inclined to support voting rights than Justice Scalia.

The result is that many Wisconsin voters are likely to find themselves in a trap. The state evaded stronger limits on its voter suppression efforts, in part due to representations it made to a federal court which turned out to be false. But the process of investigating these representations to determine that they are false takes time, and each day brings us closer and closer to the point when Purcell kicks in and Wisconsin’s election law is locked in place. All Wisconsin had to do was run out the clock, and it is likely that they have already done so.

That’s very good news for Donald Trump, at least assuming that the federal appeals court is not so upset by Wisconsin’s false statements that it decides that this is an extraordinary case that Purcell does not control.

Numerous investigations reveal that the problem voter ID is ostensibly supposed to solve, voter impersonation fraud at the polls, is only slightly more common than fire-breathing dragons. What voter ID actually accomplishes is it disproportionately disenfranchises students, low-income voters, and voters of color, all of whom are more likely to prefer Democrats to Republicans.

Though different analysts have reached different conclusions about just how much of a boost voter ID gives to the GOP, estimates range from “a net of 1.2 percentage points,” to a much bigger gain for Republicans. One study found that “Democratic turnout drops by an estimated 8.8 percentage points in general elections when strict photo identification laws are in place,” as opposed to 3.6 percentage points for Republicans.

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If the higher estimates are correct, that could be enough to hand Wisconsin’s electoral votes to Trump, even if a majority of the electorate prefers Clinton. The Real Clear Politics polling average currently shows Clinton up by less than 5 points in Wisconsin.